Source: JD SUPRA, 8/9/21


The U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers (Corps) announced on Aug. 4, 2021, the start of a long anticipated rulemaking process to revise the regulatory definition of "waters of the U.S." (WOTUS) under the federal Clean Water Act (CWA).1 The WOTUS Rule sets forth the geographic reach of the agencies' authority to regulate streams, wetlands and other water bodies pursuant to the CWA. The proposal seeks to replace one of the most controversial of the Trump Administration's environmental regulations, which is now viewed by the agencies as significantly reducing clean water protections. 

Yet the rule that the Biden Administration seeks to replace was hailed by the regulated community as a welcome check on agency overreach that also provided clarity that reduced the time it takes the agencies to make a determination of jurisdiction. Although there is no set timeline, it would be expected that the process will take at least two to three years to complete given the public notice and comment process. Litigation following the rule's promulgation should also be anticipated. Litigation upon the rescission and replacement of the existing rule is also deemed likely.

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